PESHAWAR, April 15 The NWFP governor promulgated on Wednesday the Sharia Nizam-i-Adl Regulation of 2009, providing for appointment of Qazis and restoration of the executive magistracy system in the Malakand division and Kohistan.
The regulation replaces the Sharia Nizam-i-Adl Regulation of 1999, which had been in force in Malakand and some other Provincially Administered Tribal Areas (Pata).
The new law will apply to Pata, except for the tribal area adjoining Mansehra district and the former state of Amb.
Regular courts have not been functioning in Swat since March 17 when they were stopped from taking up cases by Tehrik Nifaz Shariat-i-Muhammadi chief Maulana Sufi Muhammad.
The regulation defines Sharia as injunctions of Islam as laid down in the Holy Quran, Sunnah, Ijma (consensus view) and Qias (analogy) and requires a Qazi or an executive magistrate to seek guidance from the same sources.
According to the new law, the conduct and character of a judicial officer and executive magistrate should conform to Islamic principles and he should decide all cases in accordance with Sharia.
The regulation envisages two appellate forums Darul-Darul Qaza and Darul Qaza, which would operate in Malakand region.
Darul-Darul Qaza would be equivalent to the Supreme Court and Darul Qaza would have appellate jurisdiction similar to that of a high court.
The Darul Qaza would be constituted under Article 198(4) of the Constitution which deals with the appellate jurisdiction of high courts, and the Darul-Darul Qaza would function under Article 183(2) of the Constitution, dealing with the appellate jurisdiction of the Supreme Court.
An Ilaqa Qazi should be a duly appointed judicial officer in the province but preference should be given to judicial officers who have completed Sharia courses from a recognised institution.
The Sharia Nizam-i-Adl Regulation also repeals the Code of Criminal Procedure (Amendment) Ordinance of 2001 and revives the executive magistracy, including the district magistrate, additional district magistrate, sub-divisional magistrate and other executive magistrates. The system was abolished on Aug 14, 2001.
An executive magistrate would be empowered to deal with cases which carry a jail term of up to three years under the Pakistan Penal Code, like breach of peace and public nuisance and cases relating to deviation of licences and permits.
The law also abolishes the offices of Muavin-i-Qazi (assistant to qazi) and Aalim Wakeel, provided in the 1999 regulation. Both officials used to guide the Qazi courts in Malakand on Shariah issues.
The regulation also focuses on speedy disposal of cases.
Qazis would now be bound to decide a civil case within six months and a criminal case within four months. Any Qazi who fails to comply with the schedule would be censured and adverse remarks will be entered in his service record if he receives three letters in a year.
According to the new law, the number of pending cases before Zila Qazi, Izafi Zila Qazi and district magistrate should not exceed 150. The maximum number of cases pending before Aala Ilaqa Qazis (senior civil judge), Ilaqa Qazis and executive magistrates should be 200.
If pending cases exceed the court`s capacity, the provincial government will be required to set up new courts.
The First Schedule of the Regulation enlists 94 laws which will apply to the Malakand region and Kohistan.
Apart from the appellate courts, there will be five categories of courts the court of zila Qazi (district and sessions judge); Izafi Zila Qazi (additional district and sessions judge); Aala Ilaqa Qazi (senior civil judge); Ilaqa Qazi (civil judge) and executive magistrate.
The regulation also provides a mediation mechanism. Subject to mutual consent of the parties concerned, any civil or criminal case may be referred by a court to a Musleh (mediator) or Musleheen (mediators) before recording evidence. However, cases under the Hudood laws or those against the state cannot be referred to mediators.Malakand division includes seven districts - Swat, Buner, Shangla, Chitral, Malakand, Upper Dir and Lower Dir.
The promulgation of the regulation had been due since last year when its first draft was prepared by the caretaker government and further steps were taken when the coalition government of the ANP and PPP was set up in the province after last year`s general elections.